By The Tribunal:
Applicant, Indrajeet Singh has preferred an appeal against conviction and sentence passed by the Summary Court Martial for the commission of offence under Sec.302, IPC whereby he has been sentenced to undergo life imprisonment. Along with appeal, the applicant has submitted application for suspension of sentence. The sentence was passed against the accused-applicant on 7.9.2009, finding was confirmed on 26.10.2009 and the same was promulgated on 26.10.2009.
We have heard both the learned counsel for the parties.
Learned counsel for the accused-applicant has argued that while conducting the proceedings under Summary General court Martial, the authorities have not complied with the Army Rules 61 and 67, so also Sec.132 of the Army Act. There is no evidence, which could suggest that members of the Court Martial have deliberation on its finding in closed court in the presence of the Judge-Advocate and decision has been passed by an absolute majority of votes in absence of that, it cannot be presumed that each member of the Court Martial gives oral opinion about the sentence and conviction. The learned counsel further argued that the eye-witness P.W.3 Sunil G. cannot be relied upon as he has declined to identify the accused at the time of firing and as per his statement, the door was broke open by the accused, when he returned second time but no sign of breaking of door was found either at the site or broken door was taken into possession. There is no other eye-witness. The motive is also not so which can lead to any body to commit such an offence. The rifle was not recovered from direct possession of the accused-applicant but it was handed over to the police by one Maj Nikhil Kumar. There is very likelihood that the decision will take a longer time. Without going into the merits of the case, the applicant prayed for suspension of sentence.
On the other hand, Mr. Rakesh Jain, learned counsel for the non-applicants assisted by Col Veerendra Mohan, Officer-in-charge(Legal) has argued that Court Martial proceedings have been conducted against the accused-applicant as per the provisions of the Army Act and Army Rules and at the time of conclusion, doors of the court were closed and every member of the Court Martial has acted independently and gave their own opinion independently and separately. If the Presiding Officer appended his signatures on the proceedings then it would be presumed that every member of the Court Martial has consented to the sentence and conviction.
We have considered the rival contentions of the learned counsel for the parties. The only eye-witness, who was in the room at the time of occurrence, has clearly identified the accused. Though in the first instance, as per his statement, he could only see bareel of the gun but on second time, the eye-witness stated that he identified the accused from back side after first firing when the accused was going towards NCOs barracks. There is no contradiction in the statement of the eye-witness. In such circumstances, it is not pertinent at this stage to go into the merit of the case, but upon perusing the evidence at this stage, we are not inclined to suspend the sentence awarded to the applicant.
After going through the record, the statement of witnesses, recovery memo and more particularly, the statement of the eye-witness PW 3 Sunil G., we do not think it just and proper to suspend the sentence awarded to the applicant by the Summary General Court Martial. The application for suspension of sentence is dismissed.